Why the Supreme Court’s birthright-citizenship decision may depend on the meaning of “domicile”

SCOTUSblog ^ | Apr 20, 2026 | César Cuauhtémoc García Hernández

[Bruce Campbells Chin]

The future of President Donald Trump’s executive order attempting to limit access to birthright citizenship is now positioned for a final decision from the Supreme Court. Questioning from the justices...suggests an icy reception for the Justice Department’s claim that the constitutional guarantee of citizenship turns on an innovative interpretation of the legal concept known as “domicile.”

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Trump’s executive order...claims that the 14th Amendment grants U.S. citizenship to children born in the United States depending on the citizenship or immigration status of their parents. The amendment’s citizenship clause provides that a person becomes a citizen “of the United States and the state wherein they reside” if they are born in the United States and are “subject to the jurisdiction thereof.”

To successfully defend the constitutionality of Trump’s order, U.S. Solicitor General D. John Sauer will have to convince a majority of justices on three fronts. First, that “subject to the jurisdiction thereof” means a person is “domiciled” in the United States. Second, that domicile should be interpreted to require legal permission to live in the United States indefinitely as a permanent resident, the most privileged form of immigration status, rather than temporarily or altogether without the federal government’s permission. Third, that children born in the United States acquire citizenship at birth only if their mother was domiciled in the country at the time of the child’s birth.

The text of the citizenship clause does not use the term domicile, but the Trump administration argues that it is implied. Sauer, who is the federal government’s lead attorney before the Supreme Court, argued that “reside,” which does appear in the citizenship clause (in terms of state citizenship), “means domicile in the Constitution.” For children to acquire U.S. citizenship at birth, the constitutional provision “presupposes domicile,” he told the justices.

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TOPICS: Miscellaneous
KEYWORDS: birthright; citizenship; scotus

[DiogenesLamp]

That's what will happen.That's what will happen.

That won't happen. We can't even get Congress to pass the SAVE act, let alone define "subject to the Jurisdiction thereof".

[Regulator]

Good thing we got Cuahuatemoc to weigh in!

[CFW]

Yeah, scotusblog attorneys are usually leftists but they do give great analyses of pending cases.

Here is my opinion on the issue.

[Bruce Campbells Chin]

I (sadly) predict worse than a punt. Our current birthright citizen policy is too baked-in for some of the squishier Court “conservatives” to try to overturn. I sure hope I’m wrong.

I think birthright citizenship, as presently interpreted, is a horribly dumb idea. But I also think it is the most plain textual interpretation of the 14th. In other words, they screwed up when they passed that Amendment. But we're stuck with what it actually says, not what we think they may have meant or wanted.

I don't honestly think it involves squishiness at all. I thing you can have honest differences of opinion about what it means. Gorsuch, who is the most textual-oriented judge on the Court, will likely think Trump's order is invalid. Those who consider themselves more originalist than textualist may comes down differently.

[jagusafr]

So in this case, two Wongs quite literally don’t make a birthwight...

[plain talk]

[faithhopecharity]

the court is supposed to interpret the constitution as it is worded
/...”domiciled” is not a word in the germane constitutional clause

No “birthright citizenship” ...

The result would be quite clear if the court were to just look at the constitution and not side-track into sophistry over words that are not part of the constitution.

“To rule, you must first change the rules.” Orwell

[TexasGator]

“Gorsuch, who is the most textual-oriented judge on the Court,”

He combines textualism with originalism looking for the interpretation at the time of the writing.

[jerod]

Trump and his legal team can huff, and they can puff... But the Conservative Justices on the Supreme Court will never see the term ‘reside’ as meaning ‘domiciled’. When they proposed and ratified the 14th amendment in 1888 the word domicile was available... They didn’t use it. They used the word reside.

re·side
/rəˈzīd/

verb

have one’s permanent home in a particular place.

In terms of the 14th amendment and the constitution... The ‘particular’ place they are referring to is the United States of America.

[AZJeep]

of the state wherein they reside.

___________________

Illegals do not “reside” anywhere, in my mind.
Is squatter residing in the house he invited himself into against the will of the owners?

There are many cases where pregnant woman just makes it across the border to get birth.
Is she residing in US for few hours?

[Georgia Girl 2]

Yes, the solicitor General IMO really flubbed the case. Its all about the meaning of jurisdiction. Not domicile.

I’m expecting the court to side step the issue completely and just rule that the President does not have the constitutional authority to waive birthright citizenship. They’ll throw it on Congress.

[Bruce Campbells Chin]

...Which means the drafters intended that "subject to the jurisdiction" mean something more narrow than merely being "within" the State or USA.

Yes, but that is completely consistent with the "diplomatic immunity" view of the Amendment. A person with diplomatic immunity is not "subject to the jurisdiction thereof" even if they are within the jurisdiction of the State or USA.

[pierrem15]

I think it’s a good argument: the alternative is to accept that squatters are “domiciled” in the home they are illegally living in.

[Bruce Campbells Chin]

I’m expecting the court to side step the issue completely and just rule that the President does not have the constitutional authority to waive birthright citizenship. They’ll throw it on Congress.

I agree. Or at least, I hope that's what they'll do. Because if they rule that the President does not have the authority, they have no reason to reach the issue of whether Congress does because that issue wasn't raised. So they can -- and in theory should - not even address the issue of whether Congress could change it by statute.

But I think what we may see is some concurrences suggesting that Congress can. It would be non-binding dicta, but at least it would keep hope alive to end birthright citizenship by statute.

I think it is a bit dicey and results-oriented, but I'd prefer to see it punted to Congress. I personally think the language is unfortunately clear, but I'm also not comfortable with establishing a Constitutional-level right to citizenship that was not contemplated at all at the time the Amendment was passed.

[DiogenesLamp]

I think birthright citizenship, as presently interpreted, is a horribly dumb idea. But I also think it is the most plain textual interpretation of the 14th. In other words, they screwed up when they passed that Amendment. But we're stuck with what it actually says, not what we think they may have meant or wanted.

Progressing America would like to have a word with you.

[nesnah]

Everyone always seems to breeze right by the words "or naturalized" in the 14th. It holds some pretty significant weight behind it. Why would a born-here child have different requirements for citizenship than a naturalized person? The answer is the key - they don't.

"In the mid-19th century, naturalized was defined as the legal process by which a foreign-born person (an alien) was admitted to the position, rights, and privileges of a native-born citizen. In the United States specifically, it meant formally renouncing allegiance to a foreign sovereign and pledging loyalty to the US Constitution through a court-sanctioned process."

[Bruce Campbells Chin]

He combines textualism with originalism looking for the interpretation at the time of the writing.

I personally think this is a great case for pointing to the distinction between those two schools of thought. Maybe highlighting the fault line of "Oops, we passed a stupid law we worded badly, and we didn't actually mean what it says".

I think Trump should lose on textualism, but win on originalism. As those terms were used by Scalia.

[DiogenesLamp]

But we're stuck with what it actually says, not what we think they may have meant or wanted.

There needs to be an additional step when interpreting constitutional law.

"Is the result absolutely stupid?" If "Yes", then that is not what it means.

[mass55th]

The word allegiance to me is far more important and appropriate to argue. Illegals have no allegiance to this country. In order to become a citizen, you have to take an oath to give up your allegiance to the country you came from. No illegal has done that, nor the kid in their belly, or the kid they dropped while being in this country. You can only swear allegiance to the United States when you take the oath of Naturalization, and your children only become citizens once you swear that oath of allegiance, and become a U.S. Citizen.

Anyone can "reside" here in a "domicile." The definition of "reside" is to dwell someplace permanently in a particular place. It says nothing about legally residing in a particular place permanently. The definition of "domicile" is the country that a person treats as their permanent home, or lives in and has a substantial connection with. Again, the words legally treats or legally lives in isn't mentioned.

Illegals came to this country willingly, and many have been here 20+ years, residing permanently in a particular place, despite having broken the law to come here. That means the children they brought here, or had here, have resided here permanently with their parents in a particular place...just not legally.

At the time, because slavery was legal in this country, slaves, despite having been kidnapped from their homeland, by law, were here legally. Slaves were brought to this country against their will, taken away from their homeland and forced to permanently reside in a particular place, and it was all legal based on law. In many cases, babies born of those slaves were children of slave owners, or other white men who permanently resided in a particular place.

I have no good feelings over this argument, and no hope that the Supreme Court will rule properly on this issue.

[mass55th]

I agree with you. I don’t see anything good coming out of this.